As our Journal celebrates its 100th birthday, it is only fitting that we should look back and reflect on our professional evolution from varying perspectives. From a personal perspective, my grandfather started practicing orthodontics in 1919, followed by my father in the late 1940s; my family has literally lived through the last orthodontic century, and I am truly humbled and grateful to have been an active participant in our evolutionary and maturational process. Having served as the section editor for Litigation and Legislation for the last 2 decades and having achieved a formal education as well as practical experience in orthodontics, law, and bioethics, I was honored to be asked to look back and share my take on the changes that have affected orthodontics over the last century. For me, 3 areas stand out as having undergone significant changes vis-a-vis the legal and ethical arenas: the doctor-patient relationship, advertising, and informed consent. It is with humility and respect, as well as with a touch of vitriol, that I pen these thoughts.
The doctor-patient relationship
Malpractice is a form of negligence, and negligence is a type of tort. A tort is defined as a civil wrong based on a special relationship or implied by law. This special relationship is the doctor-patient relationship. To put it in perspective, here are a few other special relationships that the law recognizes: priest-penitent, innkeeper-guest, landlord-tenant, shopkeeper-invitee, common carrier-rider, teacher or school-student, parent-child, and so on. The law imposes certain duties and obligations on specific parties based on this special relationship. One unique difference between the doctor-patient relationship and most others is that ours is bilaterally consensual. The patient seeks out and subsequently authorizes the doctor to provide care, and the doctor agrees to accept and treat the patient; the patient is obviously seeking a cure, and the doctor is obviously seeking a fee. Courts have routinely held that we are not like innkeepers or common carriers, who are bound to accept all who seek our services. We have the right to accept or reject any prospective patient as long as any such discrimination is not because the person is a member of a legally protected class (race, religion, age, sex, sexual orientation, handicapping condition). This is evidenced by one of the earliest decisions that dealt with the doctor-patient relationship, around the turn of the 20th century. In this case, the patient believed that he was dying and sent someone to fetch the doctor. The messenger described the situation and tendered the doctor his fee; however, the doctor decided that for undisclosed reasons he did not want to treat the patient. He refused the fee and did not attend to the patient, who subsequently expired. The patient’s estate sued the doctor, and the court decided that the doctor owed no duty to the patient, noting in its opinion the following.
In obtaining the state’s license (permission) to practice medicine, the state does not require, and the licensee does not engage, that he will practice at all or on other terms than he may choose to accept. [Opposing] counsel’s analogies, drawn from the obligations to the public on the part of innkeepers, common carriers, and the like, are beside the mark.
Coldhearted? Possibly. But there it is: the doctor-patient relationship was and still is based on bilateral consent. Historically, it was the patient’s consent, and his or her authorization or permission to allow the doctor to proceed, that became the critical determinant. If this consent or authorization was not forthcoming, the courts viewed any medical intervention as battery. Prosser defined battery as “the intentional and unauthorized physical contact with a person by another. Assault is the apprehension of such contact. The gist of the action for battery is not the hostile intent of the defendant, but rather the absence of consent to the contact on the part of the plaintiff.” One hundred years ago, this concept was formalized when Justice Benjamin Cardozo penned his now famous words in the Schloendorff decision.
Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages…. This is true, except in emergency where it is necessary to operate before consent can be obtained.
Consent in this context was a synonym for authorization. At this point, it is important to make the distinction between consent and informed consent, which will be discussed later. Consent or authorization is a threshold issue; without consent, there can be no doctor-patient relationship and hence no duty to adhere to any given or established standard of care. For consent to be valid, it requires the patient to present himself voluntarily, that he be mentally competent, and that he be of legal age. Voluntariness can be vitiated, for example, by coercion (a close cousin of inappropriate or improper; read those words as synonyms for fraudulent or misleading patient education). One who is indigent may be “forced” to accept the only form of treatment that is offered, again affecting the voluntariness of the consent. Mental competency can be challenged by such things as significant immaturity and or the inability to understand and comprehend the nature and consequences of the proposed treatment. The requirement that the patient be of legal age impacts orthodontics when in midtreatment our teenage patient reaches the age of majority and has significantly different views about remaining in treatment than do his parents, who initially authorized treatment and probably paid a handsome fee up to that point. To reiterate, the bottom line is that unless a doctor-patient relationship exists, no duty is owed to a patient to conform to any established standard of care.
For me, from a historical perspective, those receiving dental care were not originally looked on as patients but rather as chattel, the property of the doctor. For the first 50 years of our existence as an organized specialty, from 1866 to 1918, the National Dental Association, later to become the American Dental Association, referred to those to whom we ministered as our patrons, not our patients, in the Code of Ethics. In 1922, those we treated became patients, but their relatively autonomous status had not changed much. If a doctor found that a patient had been mistreated by a colleague, the new doctor had a “duty to institute correct treatment at once, doing it with as little comment as possible and in such a manner as to avoid reflection on his predecessor.” Section VI of the same document noted that “When a dentist is called in by a fellow practitioner, he should hold the discussion in the consultation as confidential, and under no circumstances should he accept charge of the case without the request of the dentist who has been attending to it.” Further evidence of this can be found in the 1928 Code, where in Section 8 it was noted that when a dentist is consulted by a patient whose regular dentist is unavailable, the only treatment to be rendered was to be palliative in nature and the patient obligingly referred back to the original doctor. It was deemed unethical to urge any treatment other than that currently recommended or embarked upon by the first practitioner. In Section 9, we find that a dentist being consulted by the patient of another could not “accept charge of the case without the consent of the dentist who had been attending to it, nor until he has positive evidence that the previous dentist is fully compensated for the service he rendered.” In short, the patient was now being held hostage by one colleague, who was required to be the protector of the other colleague’s pocketbook. This language was softened somewhat by the mid 1950s. In 1958, the Code recognized that a dentist was obligated to provide expert testimony when it was requested by “appropriate public officials.” This was finally changed in 1974, when it was noted that “[A] dentist may provide expert testimony when that testimony is essential to a just and fair disposition of a judicial or administrative action.”
It wasn’t until the 1979 Code that the doctor-patient relationship was recognized professionally for what it was—a bilateral consensual relationship. Principle 1 dealing with service to the public and subsection 1A dealing with patient selection recognized a doctor’s right to be selective in whom he accepted as a patient as long as the basis of discrimination was not because the patient was a member of a protected class of persons. Section 1B noted that dentists were obligated to give patients copies of their records on request. Section 1D elaborated a doctor’s responsibility to make arrangements for the emergency care of his patients. Section 1E recognized a patient’s rights to affirmatively select a consultant practitioner as his provider of care. Section 1G required that patients be informed of faulty treatment by another, and practitioners were obligated to report repeated instances of such substandard care to the appropriate reviewing agency. From the perspective of our Code actually reflecting, to a relatively appropriate degree, the legal standards of the day, it wasn’t until 1979 that we truly entered the modern era. Finally, in the 1994 Code, it was recognized that practitioners could no longer hold a patient’s records hostage because of an unpaid account.
The 1997 Code had an entirely new format and reflected the contemporary bioethical principles still used today: patient autonomy, nonmaleficence, beneficence, justice, and veracity. The current recognition of the doctor-patient relationship was in full swing. Section 1.A stated that we must “inform the patient of the proposed treatment, and any reasonable alternatives, in a manner that allows the patient to become involved in treatment decisions.” Section 1.B.2 discussed confidentiality and the need to seek legal advice regarding termination of the doctor-patient relationship if the patient withheld permission for release of certain protected health information and the doctor deemed that it was in the patient’s best interest to give that information to another treating practitioner. The 1998 Code was the first to address patient abandonment in the context of the doctor-patient relationship; Section 2.E noted that doctors should not discontinue treatment of a patient without giving the patient ample opportunity to seek substituted care. Sections 5.F.1 and 5.F.2 prohibited inducing the public to use a practitioner’s services when such inducements were based on false or misleading statements in a material respect. Although the drafters of the Code perceived this to be an issue of veracity, it could also be argued that fraudulently inducing patients to accept a proposed treatment interferes with their autonomous ability to grant consent, thus questioning the establishment of a viable doctor-patient relationship.
Five years later, the Code addressed another aspect of the doctor-patient relationship in Section 2.G that dealt with doctors establishing personal relationships with their patients. While noting that such a relationship could impair one’s professional judgment or exploit the confidences of a patient, the drafters of the document were looking at it from the perspective of nonmaleficence. A better perspective might have been to see it as an activity having the potential to negate a patient’s autonomy relative to the issue of consent.
Regardless of how long it took to get there, it appears that our profession had finally recognized the important aspects of the doctor-patient relationship from both the legal and the ethical perspectives.
Beginning with the first Code in 1866, Section 3 noted that it was unprofessional to resort to public advertisements, cards, handbills, posters, or signs calling attention to peculiar styles of work, low prices, special modes of operating, claims of superiority, publishing reports of cases or certificates for the public press, or going house to house to solicit or perform operations, nor could dentists circulate or recommend nostrums.
The next substantive change did not occur until almost 60 years later. In the 1924 Code, Article 2 used a “laundry list” approach to address specific complaints of the day. It was unprofessional to use letters, handbills, posters, circulars, cards, signs, stereopticon slides, motion pictures, telephone, radio, newspapers, or any kind of printed or written publication or any other device or means for the purposes of (1) advertising superiority in any form; (2) advertising fixed prices when the nature of the procedure requires that they be variable (advertising fixed fees for specific procedures was allowed); (3) advertising statements that might deceive or mislead the public; (4) advertising under a corporate, company, association, parlor, or trade name; (5) advertising special methods of practice; (6) publishing reports of cases or certificates in the public press; (7) employing, associating with, or making use of advertising solicitors or press agents; and (8) giving guarantees or warrantees to induce patronage.
It was permissible to use professional and appointment cards to announce one’s name, title, address, phone number, and specialty if any, and to announce these in a newspaper. One could also mail, but only to patients of record, announcements of openings, location changes, and the intended absence from or return to practice.
In 1928 came the new expanded Code, and advertising, directories and announcements, cards in press, and specialists each had its own article in the Code. Along with the previously stated advertising prohibitions, it was unethical for a dentist to announce his or her name in any city, commercial, telephone, or other public directory or directories in public or office buildings using display type or any type that was dissimilar in size, shape, or color to that used by other dentists listed in the same directory. In addition, one could not be listed as a specialist in any directory when such a listing would impart the impression of superiority to those who were listed only as dentists. By this time, the American Board of Orthodontics was only months from being established, and one could easily perceive the prohibition relating to specialty notification as a preemptive strike to protect the status quo vis-a-vis the effect (financial?) that specialization might have on the general dentist.
The custom of inserting cards in the local press or in programs for special events or in theaters was allowed but only if done in modest size and type. This was not agreeable to all, so the following note was inserted into the Code: “This Association believes such custom to be unbecoming of professional men [and] urges [its] members to abstain from this practice.”
In addition to professional cards, it was permissible to use diagrams for designating needed radiograms or operations. Regular cards, letterheads, bill heads, envelopes, and so on could not have special cuts or distinctive lettering. Finally, it was permissible, but only if done modestly, to have lettering indicating one’s name, title, and profession on office doors and windows, but one could not use large display signs, peculiar lighting, objects, characters, or anything that imitated the unethical methods of the charlatan.
The next major changes did not occur until the 1944 Code. Gone was the laundry list of impermissible forms of advertising; in its place, the following paragraph was substituted.
Dentists should strive for reputations that are based on good judgment, professional skill and fidelity with fellow practitioners and the public. This end cannot be forced as it is the result of time combined with excellence of conduct and abilities. Advertising is inconsistent with acceptable professional behavior and if used not only reflects on the quality of the individual employing such measures but has the far more consequential effect of lowering the entire profession in the public’s esteem. It is unprofessional to solicit patients. Advertising in any form be it individual, group, or institutional is in itself evidence of such solicitation.
For cards, letterheads, and announcements, the restrictions regarding the details of type and size were omitted; instead, they should be “in keeping with the custom of dentists in the community.” Professional announcements were prohibited, except for notifying existing patients and fellow practitioners about changes in location, discontinuance, changes from general to specialty practice, or reopening after prolonged absence.
Directory listings were now controlled by local dental community standards, which included allowing or prohibiting the announcement of specialty status. As to office doors, lettering, and signs, “any type that forcefully attracts attention is not good professional practice as it reduces respect for the user and lowers public respect for the profession.” The edict also noted that signage and window lettering were permitted to vary from rural communities to neighborhood districts and to urban office buildings.
In 1979, there was a major upheaval regarding advertising. The profession was under a federal mandate to follow the law as outlined in the Bates v Arizona State Bar decision. Advertising was allowed, but it could not be false or misleading in any material respect. Trade or assumed names for one’s practice likewise could not be false or misleading, and a doctor’s name after he had left practice could not be used for more than 1 year. Specialists had to use the phrase “specialist in or practice limited to,” one had to meet all educational criteria for advertising specialty status, and if one specialized, his or her practice had to be limited to that specialty. Finally, although a general dentist could provide specialty services, he could not imply that he was a recognized specialist, had to note that he was a general practitioner, and could not use the phrase “practice limited to.” The Code noted that its purpose was to uphold and strengthen dentistry as a profession. The component and constituent societies were free to make additional rules and interpretations as long as they did not conflict with the provisions of the Code to enable them to more faithfully serve the traditions, customs, and desires of the local membership.
From both a historical and a practical perspective, anyone who will engage in professional advertising should understand the facts and decision in the Bates case. A summary of the facts shows that the plaintiffs opened a legal clinic to provide low-cost services. They relied heavily on paralegals, only did routine work using standardized forms, computerized and used economies of scale, and ran ads to increase volume by stressing low fees. This was amazingly analogous and applicable to high-volume, multichair, expanded-duty orthodontic offices.
The defendants countered with 6 arguments about why advertising should be restricted: (1) advertising created an adverse effect on professionalism, (2) the nature of advertising is inherently misleading, (3) advertising would have an adverse effect regarding the administration of professional services, (4) advertising has many undesirable effects, (5) advertising has a negative effect on the quality of service, and (6) there are difficulties relating to enforcement. Looking at these individually gives tremendous insight into the court’s rationale in fashioning its decision to strike down advertising prohibitions that had existed up to that date. I have taken the liberty of analogizing the opinion to dentistry.
The adverse effect on professionalism
Claim : Price advertising begets commercialization, leading to a decreased sense of dignity and self-worth, to both the individual and the profession. In addition, the hustle of the marketplace will irreparably damage the balance between the professional’s need to earn money and his or her obligation to selflessly serve the public.
Court’s response : The postulated connection between advertising and professionalism is severely strained. The core argument presumes that professionals conceal from themselves and the public they serve that they make their living providing the services that they do. This type of self-deception is ludicrous, since patients expect to pay something for the services they receive. The reality of every profession is that the one providing the service makes sure that the recipient has a clear understanding of the fees to be charged before providing the service. If this information can be ethically disclosed in the office, it is inconsistent to condemn the same revelation before the patient comes to the office.
That a professional’s reputation in the community will be sullied is open to question. Other professions suffer no such loss of reputation from advertising, and it could be argued that by not advertising the profession is not doing its best to reach out and serve the community. Research has shown that there is a segment of the population that does not seek a service because of a perceived fear regarding the cost of the service as well as fearing the service itself. Finally, a dichotomy exists because of how the profession has eschewed advertising on one hand, while on the other hand most professionals structure their social and civic lives and associations to give themselves plenty of exposure to potential patients or referring doctors. Early bans on advertising originated as rules of etiquette, not ethics. Habit and tradition regarding advertising are anachronistic because the foundation of advertising restraints has crumbled.
The inherently misleading nature of advertising
Claim : Advertising professional services is inherently misleading because such services are so individualized that it prevents informed comparisons regarding the availability of service and quality. Also, the consumer cannot determine in advance what services may be required. Finally, the advertiser will highlight irrelevant factors and fail to advertise the most important factor—his skill.
Court’s response : Although we agree that many of the services rendered are unique, it is precisely for this reason that fixed prices for these procedures are not advertised; only those for basic services are noted. Even though these services may vary slightly from person to person, there is nothing misleading as long as the service advertised is actually rendered for the advertised price. Although fees for these services cannot be meaningfully established belies the fact that governmental agencies (and other third-party payers) have been doing this all along.
The argument that advertising ignores the diagnostic role also fails. Patients don’t go to doctors seeking clean bills of health. Although they may not know the extent of any necessary tasks to be performed, they certainly know that an examination will ascertain the extent of intervention, if any, that is recommended. If they do recognize the need for a specific procedure to be performed, they are informed via diagnostics about the degree of complexity involved.
Finally, it is claimed that advertising is an incomplete foundation on which to base one’s selection of any professional. Although this may be so, it seems peculiar to say that no information is better than some information regarding the need to make an informed decision. The fear of the public’s lack of sophistication to comprehend the limits of professional advertising rests on an underestimation of the public that we [the court] view as dubious at best. If indeed the public is that naïve, then it is up to the profession itself to ensure that the populace is sufficiently informed.
The adverse effect on the administration of delivering dental services
Claim : There is an adverse effect on the administration of health care services as a result of advertising. It also opens the floodgates for fraud and misuse of services.
Court’s response : Although advertising may increase the use of the dental-care delivery system and thus tax its resources, this may not be bad because research has shown that a significant portion of the population does not seek dental care routinely and sometimes not even on an as-needed basis. The reasons for underuse of dental services are fear of the procedures, fear of the costs, and lack of access. Advertising can address all of these concerns.
The court then defined the purpose of advertising by stating that “Advertising is the traditional mechanism in a free market economy for a supplier to inform a potential purchaser of the availability and the terms of exchange.”
The undesirable economic effects of advertising
Claim : Advertising will increase office overhead, causing these costs to be passed on to patients in the form of higher fees. Also, advertising costs create an entry-level barrier to those entering into practice, thus giving an advantage to more established practitioners who can absorb these costs.
Court’s response : These 2 arguments are worthless. A ban on advertising increases the difficulty of discovering the lowest-cost seller of acceptable-quality service. If doctors are insulated from competition, prices tend to rise, not be reduced. History has shown that where advertising exists, prices tend to be reduced; thus, advertising could well serve to lower costs to the consumer, not raise them.
The second point is that without advertising, professionals in a community have no other avenue to generate a flow of business than to rely on their personal contacts. In view of how long it takes to establish these relationships, this may perpetuate the market position of established practitioners. Thus, entry-level problems favor the use of advertising, not vice versa.
The adverse effect of advertising on the quality of service
Claim : Advertising services en masse may not serve the needs of any one person, thus affecting the quality of service rendered in terms of undertreatment or overtreatment.
Court’s response : Restraints on advertising are an ineffective method of determining substandard care. A dentist inclined to cut quality will do so whether advertising is allowed or not.
The difficulties of enforcement
Claim : The wholesale restriction on advertising is justified because of the problems relating to enforcement. After-the-fact enforcement related to deceptive or misleading advertising does not protect the interests of the public if substandard treatment has already been rendered. Because of this potential, an increase in regulatory mechanisms is necessary, which in turn will be burdensome to the public via higher taxes to support regulatory enforcement.
Court’s response : We suspect that most dentists will act as they always have; they will abide by their solemn oaths to uphold the integrity and honor of their profession. For every doctor who overreaches through advertising, there will be thousands of others who will be honest, candid, and straightforward. It is the responsibility of those thousands to help weed out the few who abuse the public trust.
It has been almost 40 years since advertising has been allowed. Some of the advertising is great; some of it strikes me professionally as unpalatable. Regardless, it is part of our professional landscape that needs to be traversed. Going forward, I see various forms of professional promotion and advertising on the Internet as having far more significance than signage or radio or television usage, particularly because of the interactive nature of the medium. I believe that our future challenge will be the ability to keep professionalism at the forefront of our activities regardless of the environment through which those activities are promoted.